Age Discrimination: Is It Getting Harder or Easier to Sue?

Flynn, Gillian, Personnel Journal

A recent Supreme Court ruling shakes things up a bit.

Age discrimination recently has become an HR hot spot. as the baby boomers slide into their fifties, the issue of age has never been more potent. For the next few decades, expect to see repeated invocations of the Age Discrimination in Employment Act (ADEA). The ADEA, which protects employees from their 40th birthdays on, bars discrimination on the basis of age in employment issues: hiring, promotion, training, compensation, discipline, discharge-basically every aspect of being employed.

A recent Supreme Court ruling, O'Connor v. Consolidated Coin Caterers Corp., had employers nervous that the ADEA's reach would broaden even more. Pundits speculated that it would make it easier for employees to bring suit. Not necessarily so, it turns out, but the factors for determining age discrimination have shifted a bit. Joseph Baumgarten, partner at New York City-based law firm Proskauer Rose Goetz & Mendelsohn LLP, tells you what you need to know.

Can you offer some background on the O'Connor case?

The plaintiff, Mr. O'Connor, who was 56, was discharged. He alleged that he was replaced by a 40-year-old. What the court was called upon to decide was this question: When an employee in a protected age group under the ADEA is discharged, and is replaced by another employee who's also within the protected age group, does that mean that the discharged employee can't bring a claim of age discrimination?

What did the Court decide?

The answer was no [the discharged employee can bring a claim]. And the reason why, as I see it, is that age-discrimination cases are somewhat different than race-discrimination or sexdiscrimination or country-of-origin discrimination cases. Age isn't an immutable characteristic. Age is relative. That's point No 1. Point No. 2 is that the protected age class under the ADEA is defined as people who are 40 or older. That's an arbitrary line. Congress could've protected people who are 50 and older, 60 and older or for that matter people who are 20 and older. So the fact that two employees-a plaintiff and his replacement-are both older than 40 really doesn't tell you much about whether the plaintiff was a victim of age discrimination.

So the Court is saying an employee protected by the ADEA could be replaced by another person protected by the ADEA and still be the victim of age discrimination?

Somebody who is 40 years old may be considered young compared to a 60-yearold, but may be considered old compared to a 20-year-old. I think that's really the lesson of the case. I think [the Court] had little trouble reaching that conclusion-it was a comparatively short decision, and a unanimous decision. I think that the case isn't really a surprise. I think it was a common-sense decision. Not much that's controversial there.

Nothing for employers to be con cemed about?

Now there's kind of a twist on it which is this: Scalia says in his decision that the real inquiry isn't whether the replacement was within or outside of the protected age group. Scalia says the real inquiry is whether the plaintiff was replaced by someone who's substantially younger than him or her. So take the example of a 40-year-old being replaced by a 39-year-old. The 39-year-old isn't within the protected aee prouD. So in that situation you have a 40-year-old within the protected age group being replaced by someone who isn't in the protected age group. …

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